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FALAZA KHUMALO SIBANGANI HLELA DLOVANE NTSHABA

AND

THE STATE

24/83/av;
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter of:

FALAZA KHUMALO 1st Appellant

SIBANGANI HLELA 2nd Appellant
DLOVANE NTSHABA 3rd Appellant
AND
THE STATE
CORAM: Corbett, Cillié et Nicholas, JJA
HEARD: 16 March 1984
DELIVERED: 28 March 1984

JUDGMENT NICHOLAS, J A

This is an appeal in regard to sentence.

The

2

The three appellants were charged respectively as accused Nos 1,2 and 4 with house-breaking with intent to rob, and robbery with aggravating circumstances as defined in s. 1 of the Criminal Procedure Act, No 51 of 1977.
The circumstances which gave rise to the charge were these.
Mr. J J Bekker (aged 72 years) lived with his
wife (aged 65 years) on a small-holding near Weenen in
Natal. On the night of 23/24 November 1981, the couple
retired to bed after closing the doors and windows and
switching off all the electric lights. Shortly
after midnight their sleep was disturbed. The

lights

3

lights in the room were on and the doors were open. There were four men in the room (among them the three appellants), two on either side of the bed. They were all armed with cane-knives. No 4 accused also had a bayonet with a sharpened point. The fourth man had a revolver as well as a cane-knife. The accused asked, "Waar's die geld? Waar is die gewere?" Over a prolonged period they assaulted Mr and Mrs Bekker, striking them again and again, mostly with the flat side of the cane-knives and with open hands, and asking repeatedly for money and fire-arms. No 4 made as if to stab Mrs Bekker with his bayonet, and when Mr Bekker

intervened

4

intervened to protect his wife, he was stabbed through the
upper lip. There was repeated threats to kill Mr and
Mrs Bekker if they did not comply with the demands of the
accused. Eventually, Mr Bekker told his wife to give
them the money and Mrs Bekker pointed out a cash box con
taining some R800,00. The accused took this and also
her wallet (containing about R318,99) which was lying
on a single bed in the room. The men opened
cupboards and drawers from which they took a variety of articles. One of them tore Mrs Bekker's watch from her wrist, and sat upon her and pressed what she thought was the blunt end of the bayonet in her mouth, causing her great pain. They locked Mr Bekker in the wardrobe,

from

5

from which Mrs Bekker later released him. After the men left the house, Mr and Mrs Bekker made their separate ways to a neighbour's house.
Both Mr and Mrs Bekker sustained numerous injuries on the face, torso, legs and arms. Most of these were superficial, consisting largely of bruises, abrasions and minor lacerations. Neither of them suffered any permanent physical injury.
The three appellants were convicted of the offences as charged. A fourth accused (No 3) was aquitted.
Accused No 1 had three previous convictions for house-breaking and theft: two on 25 April 1978, for which

he

6

he was sentenced to imprisonment for 18 months and 3 years respectively, and one on 17 May 1978 for which he was sentenced to 9 months imprisonment. The sentence imposed on him was one of 24 years imprisonment.
The learned judge considered that the participation of Nos 2 and 4 was as culpable as that of accused No 1, but because they had clean records, they were each sentenced to imprisonment for 18 years.
The three appellants were granted leave to appeal to this court against their sentences.
In his judgment on sentence the learned trial judge said:

"It

7

"It is now my task to determine an appropriate punishment for your crimes. It is clear that your deeds were premeditated and carefully planned. You equipped yourselves in advance with lethal weapons. You, Ntshaba, provided yourself with a sharpened bayonet and your companion, who was not satisfactorily identified at the trial, carried a firearm. It is not clear whether you armed yourselves with bush knives before breaking into the house of the complainants or whether you used those subsequently found to be missing from the complainants' home and I accept in your favour that the latter is what happened. Nonetheless you all equipped yourselves with bush knives before proceeding to the bedroom of the complainants and I am satisfied that you intended to use those deadly weapons if need be with lethal results.
You threatened the complainants repeatedly with death. Had I been satisfied beyond reasonable doubt that you

intended

8

intended to carry out that threat after they had been induced to hand over their money and firearms, you would have stood in considerable jeopardy of a death sentence yourselves. On the evidence before the Court, however, I cannot be certain that that was your intention for you may have been using the threat of death to induce the complainants to reveal the whereabouts of their possessions without intending to carry it out.
The nature of the injuries which you inflicted on the complainants, although they were numerous and painful, is also not indicative of an intention to kill. I must, therefore, accord you the benefit of this doubt and sentence you on the basis that you did not in fact intend to kill the complainants after achieving your purpose. On the other hand, you undoubtedly intended to instil in them the fear of death and you well succeeded in your purpose.

While

9

While they will recover from the physical injuries which you inflicted, I do not need a psychiatrist to tell me that your treatment of them has left them with a heritage of fear which will haunt them for the rest of their lives. What makes your crime particularly despicable is your choice of victims. This was an elderly, helpless couple, living out the rest of their days in the security of their home. You violated the sanctity of their home, you destroyed their peace of mind and you grossly and cruelly abused each of them in the presence of the other. Your conduct was a most grievous assault upon law and order.
The requirements of society demand that this should be visited with a very heavy penalty which will not only be a just retribution for your crime but will also effectively deter others who may be tempted to prey upon the weak and helpless as you have."

In

10

In the assessment of an appropriate sentence, regard must be had inter alia to the main purposes of punishment mentioned by DAVIS AJA in R v. Swanepoel, 1945 AD 444 at 455, namely, deterrent, preventive, reformative and retributive, (See S v. Whitehead, 1970(4) SA 424(A) at 436 E-F; S v. Rabie, 1975(4) SA 855(A) at 862).
Deterrence has been described as the "essential", "all important", "paramount" and "universally admitted" object of punishment. See R v. Swanepoel (supra) at 455. The other objects are accessory. The aspect of retribution is considered in modern times to be of lesser importance-See R v. Karg, 1961(1) SA 231(A) per SCHREINER JA at 236A-B:

"While the deterrent effect of punishment has remained as important as ever,

it

11

it is, I think, correct to say that the retributive aspect has tended to yield ground to the aspects of prevention and correction. That is no doubt a good thing. But the element of retribution, historically important, is by no means absent from the modern approach. It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that Courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands. Naturally, righteous anger should not becloud judgment."

In S v. Rabie, 1975(4) SA 855 (A) , HOLMES, JA

said at 862 A-B:

"The main purposes of punishment are

deterrent

12

deterrent, preventive, reformative and retributive: See R v. Swanepoel, 1945 AD 444 at p. 455. As pointed out in Gordon, Criminal Law of Scotland, (1967) at p. 50:

'The retributive theory finds the justification for punishment in a past act, a wrong which requires

punishment or expiation

The other theories, reformative, preventive and deterrent, all find their justification in the future, in the good that will be produced as a result of the punishment.' It is therefore not surprising that in R v. Karg, 1961(1) S A 231 (A D) at p. 236A, SCHREINER J A, observed that, while the deterrent effect of punishment has remained as important as ever,

'the retributive aspect has tended to yield ground to the aspects of prevention and correction'."

It is clear from the extract from the judgment

quoted

13

quoted above, that the learned judge treated the retributive aspect as the major component in arriving at a sentence of 24 years imprisonment in the case of accused No 1. For most of the judgment he was concerned with the enormity of the conduct of the appellants. It was only in the last paragraph of the passage quoted that he referred, and then only briefly, to deterrence. And he did not refer at all to the aspect of reformation or rehabilitation. It seems to be clear that it was his saeva indignatio, so eloquently expressed, which led him to impose a sentence but one year short of a sentence of 25 years, which is "exceptionally long according to our

practice

14

practice" (R v. Mzwakala, 1957(4) SA 273 (A) at 278 D) and "will only be appropriate in very exceptional circumstances".. (S v. Whitehead, 1970(4) SA 424(A) at 438 H). The present is a serious case, but it is not an exceptional one.
Presumably because of the view he took in regard to the retributive aspect, the learned judge does not appear to have considered whether a sentence of much less than 24 years would have been sufficiently deterrent and preventive, In this regard reference may be made to the passage from Beccaria(who was described by DAVIS AJA as "a great authority on punishments")quoted in R v. Swanepoel (supra) at 454.

"The

15

"The end of punishment, therefore is no other, than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal."

The reformative aspect of imprisonment is emphasized in s. 2(2) of the Prisons Act, No 8 of 1959, which provides that it shall be a function of the Prisons Service -

"(b) as far as practicable, to apply such treatment to convicted prisoners as may lead to their reformation and rehabilitation and to train them in habits of industry and labour."

It

16

It is the experience of prison administrators that unduly prolonged imprisonment, far from contributing towards reform, brings about the complete mental and physical deterioration of the prisoner.
The learned judge does not appear to have considered whether the aim of reformation and rehabilitation was not more likely to be achieved by the imposition of a lesser period of imprisonment.
In my opinion, therefore, the learned trial judge over-emphasized the retributive aspect, with the result that he did not give due consideration to the more important aspects of deterrence and reformation. This amounted to

a

17

a misdirection. The result is that the sentence on No 1 accused, and consequently those on Nos 2 and 4, should be set aside (Cf. S v. Zinn, 1969(2) SA 537(A) at 540 G).
It then becomes the task of this Court to impose sentences which it thinks suitable in the circumstances.
The crimes were undoubtedly serious. The four criminals, armed with dangerous weapons,entered the house of Mr and Mrs Bekker,which was situated in a lonely area, after midnight, awoke them from their sleep, and terrorized them, repeatedly assaulting them, and humiliating them in the presence of each other, threatening them with death, and robbing them of money and other possessions.

do

18

do not think, however, that the learned trial judge was
justified in his view that the accused "intended to use those deadly weapons if need be with lethal results". There was no conduct on their part which justifies such an inference. Indeed, it appears from the evidence of Mr Bekker that he did at one stage put up strong resistance without provoking lethal retaliation. He said that Nos 1 and 2 accused tried to tie his hands with the telephone chord which had been cut from the wall, and continued -

"Toe slaat ek met die vuis. Toe slaat ek Nr 1 twee geweldige houe in sy gesig en Nr 2 het ek met die knie bygekom. Hulle kon my twee hande nie vaskry nie. Ek het hulle vanmekaar gehou en ek het

geslaan

19

geslaan en tekere gegaan. Toe ek my rug teruggooi om myself te verdedig toe beland ek in die klerekas wat half-pad oopgestaan het. Die deur .... die sleutel was in die deur. Toe sluit hulle my toe."

But whether or not the appellants had the intention referred
to, the crimes call for a heavy sentence.
So far as the accused personally are concerned, there was little information before the trial court.
No 1 said that he was 23 years old, although his age was reflected as 28 on the Form SAP 69. He said that in 1981 he was employed by Escom in Springs and was living in the hostel there. As stated above, he had three previous convictions, as a result of which he was

sentenced

20

sentenced to a total of 63 months imprisonment in 1978. He was released on parole on 5 January 1981 after serving some 32 months. The present offences were committed only some 10 months later, He does not appear to have learned any lesson from his imprisonment.
The ages of Nos 2 and 4 were reflected on the respective Forms SAP 69 as 32 and 24. Neither had any previous convictions.
The sentences in this case should give some expression to the indignation aroused by the crimes in Mr and Mrs Bekker and in the community generally. They should be sufficiently severe to serve as a deterrent to others,

while

21

while taking account of the possibility of reformation.

In my view justice will be done if a sentence of 12 years imprisonment is imposed on No 1, and sentences of 9 years are imposed on Nos 2 and 4 respectively.

For the reasons stated, the appeal succeeds and

the sentences imposed by the trial court are set aside

and the following substituted:

"No 1 accused: imprisonment for 12 years. No 2 accused: imprisonment for 9 years. No 4 accused: imprisonment for 9 years."

H C NICHOLAS J A

CORBETT,JA - concurs

FALAZA KHUMALO 1st APPELLANT
SIBANGANI HLELA 2nd APPELLANT
DLOVANE HTSHABA 3rd APPELLANT

and

THE STATE RESPONDENT

CASE NO. 24/83

/ccc

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between

FALAZA KHUMALO 1st APPELLANT

SIBANGANI HLELA 2nd APPELLANT

DLOVANE NTSHABA 3rd APPELLANT

and

THE STATE RESPONDENT .
Coram: Corbett, Cillié et Nicholas JJA
Heard: 16 March 1984
Delivered:

JUDGMENT CILLIé, JA

I have/
2. I have had the benefit of reading the judgment of my brother Nicholas and agree that the sentences imposed by the Court a quo should be set aside and that this Court should substitute appropriate sentences. However, "I do not agree that the interference is justified because the trial judge over-emphasized the aspect of retribution; in my view the difference between the sentences imposed by the trial judge and those which another court would reasonably have imposed, is so striking that the sentences of the trial court should be altered. Furthermore, J. consider the sentences proposed by my learned

brother/

3. brother to be too lenient and would suggest that each of the terms of imprisonment should be three years longer than proposed.

My reasons for dissenting are briefly the following:
The trial court found "that both in the case of the housebreaking which has been proved and in the case of the robbery of which they have been convicted, aggravating circumstan-ces are present." In my view the trial judge therefore correctly dealt with the seriousness of the offence at the beginning of his judgment on sentence, because if he came to the conclusion

that/
4. that the crime and the manner in which it had been committed, was particularly serious, he would have had 'to consider whether he should impose the death sentence. In dealing with this aspect he made three findings in favour of the appellants; they relate to not arming themselves before breaking in, not intending to kill their victims after finding the money and fire-arms they were looking for and the wounds inflicted by them as not being indicative of an intention to kill. He indicated in his judgment that he did not consider death sentences as appropriate. I do not think that this part of his judgment

shows/

5.

shows that he placed too great emphasis on retribution in his sentence.
In the second part of his judgment the trial judge dealt successively in short paragraphs with the offence, the interests of society and the circumstances of the offenders. It is significant that with reference to the interests of society in the sentence the learned judge docs not single out retribution but says that "a very heavy penalty will not only be a just retribution for your crime but will also effectively deter others."

The trial judge said that he

had/

6.

had accorded due weight to the offenders' "personal circumstances and in particular your relative youth." He did not say that he had regard to their possible rehabilitation. That does not mean that he had ignored it. In connection with the possible rehabilitation of an offender 1 want to add the following. Firstly, in similar cases it has boon said that the possibility that the offender may be rehabilitated does not signify that a long term of imprisonment is the only fitting sentence and that the sentence of death is accordingly excluded. The possibility of rehabilitation also does not moan that a

short/
7. short term of imprisonment is the only fitting sentence even though other factors may indicate a longer term. Rehabilitation is one of a number of factors which the judge has to consider together when passing sentence. Secondly, if in the course of a prisoner's detention it should appear to the prison authorities that the sentence which had been imposed, was so long that it hampered them in their efforts to rehabilitate him, they should consider the necessity for remission of sentence or parole.

Finally, in my view the trial judge was influenced by the serious nature of

the/ .....
8. the crime when he imposed a sentence which" was excessive in the circumstances of the case.

P M CILLIé, JA

251/83

N.v.H.

and

THE STATE

HOWARD, AJA :-

251/83

N.v.H.

(APPELLATE DIVISION)

In the matter between :
MALUSI KUNENE Appellant

and
THE STATE Respondent

CORAM: RABIE, CJ, et GALGUT, HOWARD, AJJA
HEARD: 16 MARCH 1984
DELIVERED: 08 MARCH 1984

HOWARD, AJA :-
The appellant was called upon to give evidence for the State at the trial of Mabone William

Duna /

2

Duna and three others ("the accused") who were charged
before DE WET, CJ, in the Supreme Court of Ciskei, with
various offences under the Terrorism Act, No 83 of 1967,

the Internal Security Act, No 44 of 1950 and the

the Publications Act, No 42 of 1974. The appellant

refused to be sworn or to give evidence, whereupon the

trial Judge conducted an enquiry into his refusal as
envisaged by s 189(1) of the Criminal Procedure Act,

1977 and sentenced him to imprisonment for a period of

two years and six months. Omitting words that are
not relevant for present purposes, s 189(1) reads:-

"If any person present at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a

witness /

3

witness the court may in a summary

manner enquire into such refusal and,

unless the person so refusing has a

just excuse for' his refusal , sentence

him to imprisonment for a period not exceeding two years or, where the criminal proceedings in question relate to an offence referred to in Part 111 of Schedule 2 or in Schedule 3 to the Internal Security Act, 1982 (Act No 74 of 1982), to imprisonment for a period not exceeding five years".

The offences referred to in Schedule 3 to the Internal

Security Act, 1982 include the offences under Act No 83

of 1967 and Act No 44 of 1950 with which the accused
were charged, so that the maximum period of imprisonment

to which the appellant was liable to be sentenced was

five years.

The /

4 The grounds of appeal are: (i) that the enquiry into the appellant's refusal to testify was

irregularly conducted and was not a full and proper enquiry; (ii) that the sentence was irregularly imposed because he was not afforded an opportunity of saying anything in mitigation; and (iii) that in any event the sentence is so severe as to warrant inter= ference.
The evidence that the appellant was required to give related firstly to an attempt by accused No 3 to persuade him to flee the country and undergo military training under the aegis of the African National Congress, a banned organisation which seeks to overthrow the

Government /

5
Government by violent revolutionary means; and secondly to the efforts of accused Nos 1, 3 and 4 in furthering the aims and objects of the African National Congress by promoting boycotts of lessons and examinations by scholars in the Mdantsane area.
When the appellant was called to the witness stand the prosecutor informed the Court that he would be required to answer questions which might incriminate him with regard to the promotion of school boycotts. The trial Judge thereupon warned the appellant in terms of s 204 of the Criminal Procedure Act, informing him that he was obliged to give evidence, that incriminating questions might be put to him, that he was obliged to

answer /

6

answer such questions and that if he did so frankly
and honestly he would be discharged from prosecution.
After acknowledging that he understood the position

the appellant informed the Court that he refused to

take the oath, whereupon the following exchange took
place:

"COURT: Why does he not want to take the oath?

WITNESS: I do not know what 1 s . . . when I made a statement because when I made a statement I was forced.

COURT: No, that is not the question. You are obliged to take the oath or affirm that what you will say as a witness is the truth. That is the law. The evidence you give after that is a matter of your conscience, you are required to .... tell the truth what you know and what you do not know, but you are obliged to take the oath. Thereafter you may tell the Court what you say is the truth. You understand?

WITNESS /

7

WITNESS: Yes, Your Lordship.
COURT: Administer the oath.
WITNESS: I am not going to take the oath because I am not going to say anything, Your Lordship.

COURT: You are only required to tell the truth, as you know it. You are in law obliged to take the oath. Now will you lake the oath.

WITNESS: I am not going to take the oath because 1 know nothing and I am not going to say anything, Your Lordship.

COURT: I must warn you that if you refuse
to take the oath I can summarily send you to
jail "

Thereafter the enquiry proceeded in the same vein, with

the trial Judge urging the appellant to take the oath
and testify, and the latter steadfastly refusing to do

so. It concluded with the following:

"COURT /

8

"COURT: Is there any other reason why you won't take the oath?

WITNESS: That is the only reason I have mentioned.
COURT: You are sentenced to two and a

half years' imprisonment."
Counsel for the appellant, Mr Mahomed, submitted that the enquiry fell short of what was required because the trial Judge failed to afford the appellant the benefit of legal advice or representation or a full explanation of his rights and duties in terms of s 189(1). It was argued that the appellant should have been apprised of his right to refuse to testify if he had a "just excuse" as envisaged by s 189(1). The appellant would have been entitled to legal assistance

if he /
9 if he had made a bona fide request for it (see S v Heyman and Another 1966(4) SA 598 (A) at 604 F - G) but in the absence of any such request it cannot be said that the trial Court was obliged to suggest or arrange for such assistance, or that it acted irregularly in failing to do so. As to the trial Judge's alleged failure to explain the provisions of s 189(|) to the appellant, it is true that there was no specific reference to the requirement of a "just excuse" for a refusal to testify, or any attempt to explain the meaning of that expression, but I am not persuaded that this amounted to an irregularity which prejudiced the appellant. He was told repeatedly that he was required by law to take the

oath /
10 oath and give evidence, he was left in no doubt that the reasons he vouchsafed for refusing to take the oath were inadequate, and he was warned that he could be imprisoned if he persisted in his refusal. It is perfectly clear that the only reason for his refusal was that he was not prepared to give evidence against the accused, that nothing would induce him to do so. It would have been futile, under these circumstances, for the trial Judge to try to explain what was comprehended by "just excuse" and inform the appellant that his excuse did not qualify. See S v Mthenjane 1979(2) SA 105 (A) in which this Court (at 112 A - G) considered a similar argument and dismissed it for substantially

the /

11

the same reasons.

Mr Mahomed further submitted that the

appellant's refusal to testify may have been attributable

to the trial Judge's failure to inform him that he was

not obliged to give evidence in accordance with any

false statement that he might have been "forced" to
make; and also to the emphasis which was placed on his

obligation to "take the oath" rather than make an

affirmation as a witness. There is no substance in

this submission. The Judge made it quite clear to the

appellant that he was only required to tell the truth

as he knew it; and his refusal to testify had nothing

to do with any objection to taking the oath as opposed

to making an affirmation.

Whilst /
12 Whilst it has not been shown that the enquiry into the refusal to testify was irregular or inadequate, there can be no doubt that in sentencing the appellant without affording him the opportunity of saying anything in mitigation, the trial Court committed a gross irregularity which vitiates its decision on sentence. (See S v Leso en 'n Ander 1975(3) SA 694 (A); S v Mthenjane, supra, at 113 H - 115 A.) This Court is therefore at large to consider the question of sentence afresh. It was agreed that if the sentence was set aside it would be convenient for this Court itself to impose an appropriate sentence, rather than to remit the matter to the Court a quo; and also that for the

purpose /

13 purpose of assessing such sentence we should have regard to evidence of the appellant's personal circumstances furnished by way of affidavit.
It appears from the affidavit that at the date of sentence the appellant was a 19 year old schoolboy. He had passed Standard 9 at the end of 1980 and would have written the matriculation examination the following year, but his education was interrupted when he was detained by the Security Police on 24 January 1981. He was kept in detention until 1 May 198 1 when he was released. He was detained again on 14 July 1981, and remained in detention until 19 July 1982 when he refused to testify and received the

sentence /

14 sentence of 2 years and 6 months as aforesaid. He lived with his mother, a brother aged 15 and two sisters aged 10 and 6 respectively. He is anxious to complete his education and obtain employment in order to assist his mother in maintaining and educating his brother and sisters.
Having regard to the appellant's personal circumstances, the nature of the case against the accused and the significance of the evidence which the appellant was required to but refused to give, I think that a sentence of imprisonment for one year and nine months is appropriate.

In the /
15 In the result the appeal is allowed and the sentence is altered to imprisonment for a period of one year and nine months.

J A HOWARD

ACTING JUDGE OF APPEAL

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